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The application by ICM for the .xxx sTLD has been rejected by the ICANN Board by a 9-5 vote in favor of a resolution to reject the application. Susan Crawford's comments on why she voted against this resolution echo my feelings. I have continued to vote in favor of granting .xxx to ICM and voted against this resolution to reject the application. ICANN is not chartered to be involved in trying to determine whether specific content is appropriate or not. ICANN should not be determining whether top level domains (TLDs) will solve the world's problems or not. We were asked to review an application based on whether the application met the requirements of the Request for Proposal (RFP). My view is that the applicant met the requirements of the RFP and that not granting the applicant their request for the right to run the .xxx TLD is wrong. If the RFP was wrong, this should be taken into consideration when thinking about the next round and not affect our current decision.

On the other hand, as a member of the board, I will respect the majority vote of the board. We have been working on this proposal for years and we have spent a tremendous amount of effort in trying to understanding the arguments and evidence presented to us by a huge number of parties. I urge the public and people who have not been tracking this issue not to over-simplify this issue and read Susan's comments carefully. This is NOT about whether we are for or against pornography. This is about the ICANN process and the role of ICANN.

10 Comments

I took part to a legal meeting in Pune as a representative of the European attorneys or people dealing with law. We have dealt with ICANN as a "super- government" body which, de facto, goes over the heads of every nations' laws.

If I were you, I would have voted like you. The point is not how to solve problems, is how not to substitute laws, I think. You have a tremendous power in your hands.

I understand that this is not about whether pornography is good or bad - a debate way outside the scope for any of us to really participate in.

However the notion of the .xxx domain was to try to 'segregate' porn -- rightfully or wrongfully -- into a new tld and away from other tlds. Then we could ban access to .xxx in controlled environments like schools and public libraries.

To me, and many others, this was a flawed concept because owners of top-tier domains like sex.com are not going to give up their domains. In fact, no one would give up their non-xxx domain name - why would they?

With this in mind, if .xxx had gone through we would simply have seen a flurry of new sites serving this niche and specific demographic whilst all of the existing sites on .com/net/org/other remained. Kinda defeats the point of the exercise.

Outside of that flawed model, the tld's creation would have served no-one as .xxx is pretty useless to anyone not operating the porn business.

The overall concept was broken (regardless of the controversy of the demographic) and if it wasn't the role of ICANN to judge that then I'd like to know who's role it was.

There has to be a crap-filter somewhere.

I still 'WTF' when I think about .aero's approval. A TLD for the aviation business... why?

I disagree Ben. If the application was in order then it should have been granted. There is no blanket solution for porn and denying the application based on anything but the merit of the registrar to perform the duties required to run the .tld is outside of the scope of the body. If you're saying that ICANN should be the crap-filter of the internet then I point you to .info and call bullshit on the whole idea. ICANN has disappointed again and again and this is just another bad decision in a long string of bad decisions.

I'm really glad people like Joi are on the board to give us more insight into what's happening, even if the majority of the board make consistently bad and harmful decisions.

Hey Jason - I think we actually broadly agree on the fundamental point that ICANN disappoints - either in it's execution or in it's remit.

I should point out that despite the tone of my origial comment, I actually have a lot of respect for Joi - he's a great man and we're lucky to have him around on bodies like ICANN.

However, it's for people like Joi to call bullshit on the process if the process ain't working. I can call bullshit all I want - but who the fuck am I? I'm no-one.

Joi is a boardmember of ICANN and it is only going to be through people like Joi are we going to get an improvement - either a change in ICANN or the creation of better standards/watchdogging/pre-vetting ICANN requests.

Do we not all agree that something is seriously broke in the system when we have domains like .xxx and .areo (and .name, etc) popping up. We can all play the "it's not my fault, I have nothing to do with it card" - but the legitimacy of that claim varies considerably between mere netserfs like me and people like Joi and Susan Crawford.

That comment quotes Reed Lee of the Free Speech Coalition i- which is an industry constituency (large online porn publishers) and which is not exactly the biggest fan of .XXX. Well worth a read, in this context.

Suresh : My personal opinion after reviewing the evidence and the assertions was that ICM was supported by the large content providers and the Free Speech Coalition was supported primarily by the smaller "distributors." The relationship between the two is that the large content providers want to "be legit" and stamp out piracy, fraud, and illegal activity and want to push towards some sort of compliance. The smaller distributors, on the other hand, did not want the additional cost and also do not want to "lose control" to the larger content providers. (I'm sure there are other dynamics, but this was one of them.) Other than Larry Flynn, who has historically been a spokesperson for free speech, it appears that the division of the groups is down this line. At the end of the day, I think it is really a struggle of these business interests, and not one about free speech or no.

I think there are arguments both ways, but I find the argument that the large content providers would rather self-regulate than have regulation forced on them more convincing than the smaller distributors asserting that they are against it for free speech reasons.

Also, ICM had 77,000 registrations from over 1000 unique registrants who supported the TLD. The registrants were authenticated and this data was made available to staff in a redacted but mostly verifiable. The Free Speech Coalition, on the other hand, cited 3000 members, but there was a suggestion that these members were not active. When the Free Speech Coalition filed for an injunction in 2005, "members" were provided some sort of legal protection and many people signed up just to receive this protection. This had nothing to do with .XXX. I have not seen anything that proves that the Free Speech Coalition is really speaking on behalf of all of these people on this particular issue.

My understanding is that 2 out of the 24 supporters withdrew their support - Larry Flynn, and a trade magazine. The supporters of .XXX still represent about 50% of the revenue of the industry.

There is an argument that the applicant does not represent the "entire community", but my interpretation of the RFP is that they don't have to. They just have to represent A community that has unique needs from the entire Internet community. To me, the self-selected group of adult entertainment companies who would like to self-regulate under a TLD is a reasonable definition of a community.

I've done what I can to vet this information, but I would agree that it is still murky. However, I do think that ICM has made efforts to provide us and staff with to try to help us audit their claims.

FYI, all of this information is in the comments during the public forum and presented by Peter, Susan and David during the voting yesterday.

Also, I would like to add that I am not really accusing other board members of ignoring facts. I think different board members put different weights on the assertions and claims of different groups. I'm not going to assert why different board members voted the way they did, I am just saying that we were presented with a huge amount of contradictory information and depending on who you ended up believing and what outside information you ended up reading, you could come up with a very different view. My view represents where I ended up after considering the material that I was presented or was able to gather.

Ben, I agree. During the voting, I made the point that this should be a wakeup call that the process is broken, but that we should address the process by dealing with the process development of the next round of applications and not by voting against this particular application.

I was listening carefully in the room as both you and Susan spoke, and while I think I can understand some of the fury of some of those who voted in favour of the motion (words like "unprincipled" create personal feeling), I found the differences between a process-oriented view that takes a literal interpretation of the RFP (Susan) and one that takes a technical interpretation of the role of the ICANN (Alessandro) to be the main division.

If ICANN is determined to stand out of the way of content regulation, to claim a clean hands approach as that of a "technical coordination mechanism" not a global infrastructure regulator (which it is so unwilling to do given the type of legitimacy claim that might conflate), then that helps me understand the board's decision. On process, from outside it seemed to me that ICM was in the end told that (in retrospect) it would never have had any real chance of creating the relevant sponsorship community. As some portion of the adult community would always oppose (we can leave to one side the distinction between 'responsible' or not, Astroturf or not), the reasons given in the vote appear to indicate that ICM was sunk. That's worrying in process terms, to say the least.

If ICM registry believes that it has been singled out for disparate treatment it can, under ICANN's bylaws, apply for independent review of Board actions, but even if the Independent Review Panel agrees completely with ICM's claim the Board is still not obligated to accept the IRP decision. So, is there really any accountability in this process?

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